SCOTUS To Examine Whether First Amendment "Trumps" Lanham Act

The U.S. Supreme Court continues to show interest in trademark issues with its recent grant of certiorari in another case pitting the Lanham Act against the First Amendment.

Applicant Steve Elster applied to register the trademark TRUMP TOO SMALL for t-shirts back in 2018. The US Patent and Trademark Office ("USPTO") refused registration on the basis of Section 2(c) of the Lanham Act, which prohibits the registration of marks that consist of or comprise a name, portrait, or signature identifying a particular living individual except when the individual has provided his or her written consent.

On ex-parte appeal to the USPTO's Trademark Trial and Appeal Board, the applicant argued that Section 2(c) of the Lanham Act is unconstitutional because it violates his First Amendment right to free speech, i.e., applicant's right to criticize a political figure. The Board, however, disagreed. Affirming the refusal to register, the Board found (1) that the applied-for